Signing a Recall Petition Does Not Require Judicial Recusal

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Category: Constitutional Law, Election Law, First Amendment, Judges & Judicial Process, Legal Ethics, Political Processes & Rhetoric, Public, Wisconsin Court System, Wisconsin Law & Legal System
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We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so.

A judge’s disqualification is required by law under the circumstance set forth in Wis. Stat. 757.19, which generally lists instances in which a judge has a personal or financial connection to the case before the court. However, one section of the statute, Wis. Stat. 757.19(2)(g), also requires disqualification “[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”  This particular ground of mandatory disqualification is broad, however the Wisconsin Supreme Court has made it clear that the determination of whether the general provision of this subsection applies is to be left solely to the subjective determination of the judge.  Donohoo v. Action Wisconsin, Inc., 754 N.W.2d 480 (Wis. 2008).

In the Donohoo case, Justice Butler, while still a Circuit Court judge, had appeared at a fundraiser benefitting a gay rights organization and had accepted the endorsement of an attorney who worked for the organization.  The Wisconsin Supreme Court ruled that then-Judge Butler could decide that he was capable of being impartial in a subsequent case involving gay rights, and that he was not required to disqualify himself.  The Court made it clear that the majority agreed with the Judicial Commission’s dismissal of a complaint arising out of the same facts:  “As to Donohoo’s claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that ‘[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way.’”  Therefore, the relevant precedent in Wisconsin leads to the conclusion that the mandatory disqualification rule would not apply to the signing of a recall petition, unless the judge who signed the petition doubted their ability to decide the case before them in an impartial manner.

Because the disqualification grounds of Wis. Stat. 757.19 would not mandate the disqualification of Judge Flanagan in the Voter ID case, so long as he subjectively believed that he could continue on the case in an impartial manner, the question next turns to whether the Code of Judicial Conduct, as reflected in the Rules of the Wisconsin Supreme Court, is somehow violated when a state judge signs a recall petition.  Once again, the answer is “no.”  There is no provision of the Code of Judicial Conduct that prohibits a sitting judge from signing a recall petition.

For example, SCR 60.04(4) states that a judge should recuse herself when the facts and circumstances reveal a personal bias against a party or a lawyer involved in the case before her, an economic interest in the case before her, or where the judge has previously made a public statement on the merits of the legal issue involved in the case before her.  None of these grounds apply to Judge Flanagan’s handling of the Voter ID case.  Governor Walker is not a real party of interest in the Voter ID case.  The Governor is named as a defendant in his official capacity as the highest Executive Branch official charged with enforcing an allegedly unconstitutional law.  None of Scott Walker’s personal actions are at issue in the case and he faces no personal liability.

Naming a government official as a defendant in their official capacity is a common practice.  It does not make Judge Flanagan’s personal opinion of Governor Walker relevant to the Voter ID case any more than Justice Scalia’s personal opinion of President Obama is relevant to the case challenging the constitutionality of the Affordable Care Act (one of the lawsuits challenging the Act named President Obama as a defendant).  Constitutional Law textbooks are filled with cases with names like Perry v. (Arnold) Schwarzenegger, which challenged California’s law prohibiting same sex marriage.  Even though Governor Schwarzenegger publicly opposed the law being challenged by the plaintiffs, and he joined the plaintiffs in calling for the law to be struck down, the lawsuit that the plaintiffs filed still names him as a defendant in his official capacity as Governor.  SCR 60.04(4) does not apply.

Another potentially relevant rule is SCR 60.06, which is directed at “inappropriate political activity” by sitting judges and candidates for the judiciary.  For example, SCR 60.06(2) prohibits judges from participating in the activities of a political party or a political candidate, or from endorsing the candidates of a political party.  However, the plain language of this rule does not include the signing of a recall petition among the identified instances of “inappropriate political activity.”

Moreover, the nature of the political activity identified as prohibited suggests that the Rule is focused on public actions by judges that would undermine the public’s perception of the judiciary as a non-partisan institution.  Many of the rule’s provisions specify the prohibition of public endorsements and publicly expressed opinions, as distinguished from privately expressed opinions.  Think of a judge who appears in a television ad for another political candidate, while wearing judicial robes and being identified as a judge.

In contrast, the signing of a recall petition is not an action that is publicized by the judge, and the petition itself does not identify the signer as a member of the judiciary.  It is true that the recall petition is an official document that is subject to public review.  However, it is the supporters of Governor Walker who chose to turn the signing of the petition into a public act and to identify the signer as a member of the judiciary.  None of the judges who signed a petition publicized the act or their judicial position.

Note that the rules do not prohibit all political activity, only “inappropriate” political activity.  The comment to SCR 60.06(2)(e) states the following:

Although the rule contemplates the continuance of nonpartisanship on the part of Wisconsin judges and those seeking judicial office, judges are not expected to lead lives of seclusion. As members of the public and as public officeholders, judges may attend public events, even those sponsored by political parties or candidates, so long as the attendance does not constitute the kind of partisan activity prohibited by this rule. The judge, judicial candidate or judge-elect is responsible for so conducting herself or himself that her or his presence at the sponsored event is not made to appear as an endorsement or other prohibited political activity.

In other words, a judge may attend a partisan political event as a member of the public, without violating the Code of Judicial Conduct, so long as he or she does not call attention to themselves or to their official position.  If a newspaper reporter recognized the judge at the event, and wrote a story publicizing the judge’s attendance, that would not transform the judge’s attendance at the event into a violation of the Rule.  This comment further illustrates that SCR 60.06(2) is primarily focused towards political conduct that is intended for public consumption.

Could the literal language of SCR 60.06(2) nonetheless be interpreted to reach the signing of a recall petition?  Yes, it could, if one takes the view that the words of any statute have the quality of Play-Doh, and are susceptible to being formed into whatever shape one desires.  This seems to be the position of Rick Esenberg, who has argued in a blog post that the words of SCR 60.06(2) could be construed to apply to the signing of a recall petition without managing to articulate a reason why we should choose to interpret the words in such a fashion.

The last provision of the Judicial Code of Conduct that is arguably relevant to the signing of a recall petition is the general command contained in SCR 60.05(1)(a), wherein a judge is admonished to conduct their extra-judicial activity so as not to “cast reasonable doubt on the judge’s capacity to act impartially as a judge.”  Should this very general language be interpreted so as to apply to the signing of a recall petition?

Of course the language is capable of being applied to this situation – the language is so broad as to potentially apply to anything.  When applying such broad language to a particular factual scenario, it is wise to reflect on the overall purpose of the broad prohibition.

In my opinion, the issue of judicial recusal has become muddied as both political parties seek to use it for their advantage.  If the judge has received something of value from a party or an attorney, then they should recuse themselves because they are presumed to be in that person’s debt.  This is the situation where Justice Gableman admittedly received free legal services from a law firm appearing before him.

However, campaign contributions received by a judge from a party or their lawyer don’t count as something of value unless the contributions are disproportionately large.  See Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009).  This is a tricky distinction to make, as campaign contributions can also create the perception that the judge is in the donor’s debt, but it is a necessary distinction if we are going to elect judges.

Finally, judges should not feel obligated to recuse themselves because of previously expressed political opinions that are unrelated to the case before the judge.  In contrast to the situation where they receive something of value, here the judge is entitled to the presumption that they can decide the case in good faith.  This latter situation includes not only the signing of a recall petition but also attendance at conferences and events sponsored by liberal or conservative groups.

There are two problems with interpreting the broad language of SCR 60.05(1)(a) to reach the signing of a recall petition.  First, it would then be impossible to distinguish the signing of a recall petition from other actions that might be perceived as expressing a generalized political view, such as speaking at a Federalist Society event or accepting an award from the American Civil Liberties Union.  In particular, the general language of SCR 60.05(1)(a) should not be construed to require mandatory recusal in situations where the expression of a general political opinion would not lead to mandatory disqualification under Wis. Stat. 757.19(2)(g).  In the Donohoo case, the Wisconsin Supreme Court interpreted both provisions in a parallel fashion.  If the attendance at a fundraiser for a special interest group is not sufficient to create an automatic perception of bias requiring disqualification under the statute, then it should not require recusal under the Code of Judicial Conduct, and vice versa.

Second, the signing of the recall petition is a constitutional right, and we should not interpret the broad language of SCR 60.05(1)(a) so as to force judges to forego their constitutional rights absent a compelling reason.   The need to identify some compelling state interest in policing a judge’s expression of general political opinions is grounded in the recognition that all expressions of political opinion are the exercise of a constitutional right.  The rights guaranteed under the First Amendment of the federal Constitution prevent a state from mandating the recusal of a sitting judge who declares “I am a Democrat.”  Seifert v. Alexander, 608 F.3d 974 (7th Cir. 2010).  Similarly, the Wisconsin Constitution gives every voter who resides in this state the right to sign a recall petition.  We ask our judges to comport themselves with integrity and to maintain an impartial attitude, but we do not demand that our state judges abandon all of their constitutional rights after being elected to the bench.  The signing of a petition, without any attempt to draw attention to the act or to identify oneself as a judge, is not an effort to sway voters for partisan ends.  There is therefore no compelling interest that would justify state regulation over this expression of opinion.  This interpretation of the general requirement of impartiality in SCR 60.05(1)(a) is in accord with the general view of Justice Roggensack, who wrote for four members of the Wisconsin Supreme Court that recusal rules must be “narrowly tailored to meet a compelling interest.”  In the Matter of Amendment of the Code of Judicial Conduct’s Rules on Recusal, 2010 Wis. 73, Para. 11.

Therefore, I conclude that the Code’s regulation of extra-judicial political activity should not extend to prohibit the signing of recall petitions.  Interpreting the recusal rules in ways that seek to police the expression of generalized ideology on the part of state court judges is a fool’s game.  We should not mandate the recusal of a judge unless their actions reveal a particular bias in relation to the actual parties, counsel or facts in the case before them.  In a separate context, Rick Esenberg has noted, “[h]aving a view on a legal or political issue is not the type of bias with which the state may concern itself.”  If You Speak Up, Must You Stand Down: Caperton and Its Limits, 45 Wake Forest L. Rev. 1287, 1327 (2010).  If this statement is true as a matter of general principle (and I believe that it is), then the belief that Scott Walker should be subject to a recall election has no relevance to the ability of a judge to be impartial in a case challenging the Voter ID law.

My colleague Janine Geske, a former member of the Wisconsin Supreme Court, believes that Judge Flanagan and the others should have refrained from signing the recall petitions so as to avoid any possible perception of partiality.  I have the utmost respect for Janine Geske, and I would sleep better at night if she were still a member of the Court.  I certainly cannot criticize her for encouraging judges to avoid activity that creates even the slightest perception of partisan activity.  However, I do not understand her to contend that the Code of Judicial Conduct as currently written prohibits the signing of recall petitions by judges.  Clearly, it does not.

Judges should not be expected to conduct themselves so as to satisfy every unrealistic expectation of an oversensitive minority.  After joining the United States Supreme Court, Justice William Brennan was stung by criticism that his attendance at a legal conference might be perceived by some as endorsing the views of the conference organizers.  As a result, he declined every subsequent speaking invitation that he received, no matter what the group.  His biographers Seth Stern and Stephen Wermiel note that this gregarious person maintained few professional friendships outside of his colleagues on the Supreme Court, and that having reached the pinnacle of the legal profession he became isolated from the practicing bar.  Justice Brennan’s strict refusal to attend any legal conferences may have been scrupulous, but it was sadly unnecessary.

In the future, should we amend the recusal rules so that the rules explicitly mandate the recusal of judges who have expressed general political views that one of the parties finds objectionable?

There are two schools of thought.  One group argues that after Caperton it would be useful to draft more explicit provisions setting forth the grounds for recusal in a wide variety of situations where the public may perceive the existence of bias.  These commentators argue that a general “impartiality” standard is insufficient to protect litigants from judicial bias, but that more focused rules would be more successful.  Among the exponents of this view are Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 B.U.U. L. Rev. 943 and Tobin A. Sparling,  Keeping up Appearances: The Constitutionality of the Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19 Geo. J. Legal Ethics 441 (2006).

A second school of thought argues that this approach is folly.  Judges have the same opinions, beliefs and pre-dispositions as anyone else, and it is impossible to guarantee any litigant a judge for their case who has never previously expressed any political, social or economic point of view.  Among the exponents of this view are Erwin Chemerinsky, Restrictions on the Speech of Judicial Candidates Are Unconstitutional, 35 Ind. L. Rev. 735 (2002) and James Bopp, Jr. & Anita Woudenberg, An Announce Clause by Any Other Name: The Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising Their Freedom to Speak, 55 Drake L. Rev. 723 (2007).

I agree with the second school of thought.  Parties have a reasonable expectation that their judge will not be biased towards their particular case; parties have no reasonable basis to expect that their judge is a blank slate who has never formed a political opinion on any issue nor adopted any religious or moral points of view.  Rather than policing the expression of general ideology by members of the judiciary, the bar and the public should instead scrutinize the written opinions of judges to ensure that those opinions fairly discuss and resolve the arguments of counsel.  The role of the judge is to put their ideology aside and to give the legal arguments of the parties a fair hearing, not to divest themselves of any vestiges of ideology in their personal life.

I suspect that even the drafters of the complaint filed against Judge Flanagan with the Judicial Commission are aware of the tenuous nature of their legal argument.  The Complaint filed by the Wisconsin GOP relies primarily upon a 2006 Court of Appeals decision named State v. Gudgeon that involves neither Section 757.19 nor SCR 60.05.  Nowhere does the Complaint by the Wisconsin GOP discuss the 2008 Donohoo opinion of the Wisconsin Supreme Court which is directly on point.  Perhaps the Wisconsin GOP views their complaint as nothing more than a bargaining chip, whereby the Judicial Commission might be inspired to drop the complaint against Justice Prosser in order to avoid deciding the complaints against Judge Flanagan and the other state judges who have signed recall petitions against the Governor.  If so, then they fail to appreciate how absurd it is to equate charges of physical assault (subject to the separate provisions of SCR 60.03) with the lawful exercise of a constitutional right.

More likely, the drafters of the Complaint fully expect that the Judicial Commission will reject their complaint against Judge Flanagan while at the same time continuing the investigation of Justice Prosser.  This eminently foreseeable result would serve their broader purpose of undermining the public’s confidence in the Judicial Commission, by giving Judge Flanagan’s critics an excuse to make unfounded claims of partisan bias.  Other attacks on the integrity of the Judicial Commission by the group Media Trackers have proven groundless, but that is unlikely to deter the steady drumbeat of criticism that various groups have directed at the Judicial Commission.  The goal of these critics is to influence public opinion through the vehicle of inflammatory allegations, and not to raise issues of legitimate concern relating to the administration of justice.

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14 Responses to “Signing a Recall Petition Does Not Require Judicial Recusal”

  1. Martha Deming Says:

    Thank you, thank you, thank you. I appreciate your clear explication of the legal reasons judges may exercise their constitutional right to sign recall petitions.

    Certain political forces are using recall petitions as blacklists, pressuring and censuring signers where they live and work.

    For example, support for United Way of Greater Milwaukee has been questioned because several leaders there, as individuals, signed petitions. On March 24, Gannett newspapers across Wisconsin publicly censured employees who signed petitions, said they never should have signed, and promised not to allow such activities in future. (Good luck defending that in court, Gannett.) Local officials in my city who signed the petitions have had their names published and were questioned whether they can work with the state. Signing a recall petition shouldn’t be allowed to become this sort of litmus test.

    Immediately after Judge Flanagan’s decision in the voter ID case, his recall signature was reported on Twitter. I’m no lawyer, but couldn’t the state have raised the issue of the case being heard by a judge who had signed the recall petition if, as seems likely, they knew that while Flanagan was hearing the case? Or, when appealing for a stay of the injunction, which was after the judge’s signature had been publicized, couldn’t the state have raised the issue then? Yet, they didn’t. Maybe because they realized they didn’t have a legal leg to stand on?

    And yet the drumbeat continues, day after day, presenting the constitutionally protected act of signing a recall petition as if it’s a scandal.

    Thanks for shining some light where there has otherwise been way too much heat.

  2. Dan Mitchell Says:

    I came across your article and was interested in your take on this issue. I feel however that you have overlooked a small detail in play here. What is the intent of SCR 60? It is plain to see the purpose is to have judges maintain the appearance of impartiality. In 60.05(1)(a) if a judge signs a public document calling for the recall of a public official I think it is quite reasonable to doubt that the judge could make an impartial decision concerning that official. Also in 60.06 it is made quite clear that judges should refrain from aligning themselves with a political party. Doesn’t the phrase “I am a Democrat” do just that? Finally anyone who has paid any attention to the recall efforts of Scott Walker should be able to easily determine that this is a very partisan effort. Although one can bring up anecdotal incidents of people who have voter’s remorse, the vast majority of people involved in this effort did not vote for him in the first place. Therefore a member of the judiciary who signs such a document is definitely making it difficult to maintain the appearance of impartiality in such matters.

  3. Ed Fallone Says:

    Ms. Deming:

    Thank you.

    Mr. Mitchell:

    My entire post explains why standard principles of statutory interpretation and the relevant judicial precedent lead to a different conclusion than yours.

    We do not interpret words in isolation and ask “is this a reasonable result?” Instead, we interpret words against a backdrop of precedent and previously recognized constitutional rights. Our interpretation of the rules that apply to this case must be consistent with the overall legal environment — not sticking out like a sore thumb. Otherwise, you do not have a coherent system of law, but instead you have chaos.

  4. Dan Mitchell Says:

    Mr. Fallone, thank you for your response. It is my contention that this state is indeed in chaos as we speak. It also seems to me that the very cause of this lack of order is the interpretation of rules based on “precedent” rather than employing some original thought and trying to realize what the spirit of the law actually intends.

  5. Robert Zeinemann Says:

    There is a leap of logic everyone seems to be ignoring. Signing a recall petition is merely an indication that the signer believes a recall election should be held. It is not voting, and it does not indicate who the signer would support in a recall election.

    A supporter of Governor Walker could rationally sign a recall petition. By way of example, suppose I strongly believed in Governor Walker’s political agenda, felt he would easily win the recall election and that winning the recall election would only vindicate Governor Walker’s agenda and make him stronger. I am then inclined to sign a recall petition.

    Further, on principle, I could believe the voters of Wisconsin should be given an opportunity to participate in a recall election, sign the recall petition without knowing how I will vote, and then after hearing all the political ads and carefully weighing the candidates, decide to vote for the incumbent.

    The act of signing a recall petition does not identify political affiliation and does not require the signer to vote against the incumbent, or even to vote at all.

  6. Tom Kamenick Says:

    Ed, it’s not enough to simply say a judge has a first amendment or other constitutional right to recall. When people become judges they voluntarily give up substantial constitutional rights, because the judges’ rights must be weighed against the due process rights of litigants to a fair and impartial judge. A judge may have the constitutional freedom of speech to tell the jury exactly what he thinks of a criminal defendant, but he’s rightfully barred from doing so.

    Nor is it enough to point out that Governor Walker was sued in his official capacity. The recall process is targeted at him in his official capacity, too. He’s not being recalled because he, say, engaged in embarrassing displays of public drunkenness and inappropriate behavior.

    You try to downplay the public nature of signing a recall petition by shifting focus to the actions of Walker’s supporters. But signing the recall is not like voting, nor is it like sharing your thoughts on Walker in general with your neighbor at their barbecue. Signing a recall is going on the record as not only wanting the formal process of removing a politician from office to go forward, but helping that process go forward by formally requesting the government hold a recall election.

    I agree with you that signing a recall petition itself isn’t clearly barred by the statutes or judicial code. Especially where the first amendment is involved, government should not be punishing people – even government officials – for behavior that is not clearly banned.

    It’s an entirely different question, however, whether a judge who signed a recall petition against a politician should sit in judgment when that politician is a party. Serious due process concerns arise when a case revolving around an official act by a governor is decided by a judge who has taken public part in a binding legal process aimed at removing the governor from office because of the official acts he has taken.

    Media companies are reporting that many of their own employees have violated their policies against getting involved in the public political processes they are reporting on and/or making public statements of support of or opposition to public figures. Why have such a policy? Not because journalists are expected to have no opinions, but because they are expected to avoid the appearance of bias.

    Do you honestly believe the duty to avoid the appearance of bias is less important for a judge than it is for a journalist? Journalists are under no compunction but their self-adopted employment rules crafted to help protect their own image. Judges are under a far greater duty to do their work in a fair and impartial manner, which includes appearing to be fair and impartial. I doubt you would invert the importance of those duties in that way, but how do you square that with believing that the law doesn’t (and shouldn’t be amended to) require recusal in this situation?

  7. Ellen Henak Says:

    Are recall petitions different from nominating petitions for judicial offices? Or from endorsements? If so, how? I’ve not seen anyone ever suggest that participating in judicial elections matters for recusal. Should it?

    Assuming that signing a recall petition requires recusal, could signing nomination papers or endorsing similarly require recusal? If an attorney runs for judicial office and loses but the judge in the case either endorsed the attorney or signed nominating petitions, should the judge then recuse in any cases where that attorney appears?

  8. Julie Hancock Says:

    My question that follows this is how does this apply to the situation at Gannett where it publicly apologized for its employees who signed the recall petition, and promised disciplinary action would take place as to those 25 employees. It also stated its code of ethics, as in its terms of employment forbid their employees to participate in politics to avoid an appearance of bias on the side of the news organization. While it is refreshing to see a news organization care about such a thing in this day and age, when I read about the public apology, and the code of ethics, my legal mind was instantly concerned. While Gannett is a private employer, can they require their employees to contract away a constitutional right as a term of employment, especially one such as voting and the right to self-governance. The employees willingly signed the code of ethics as a term of employment, but does this raise other constitutional issues, or is this requirement okay?

    The other part that gets me about the public apology is it seems, unless I missed a key piece of this story, but-for Gannett’s public apology, the employees did nothing to disclose publicly their signing of the recall petition nor their employment affiliation in order to raise their “transgression” to the level of imputing any negative appearance on the news organization.

    I’ve been working through this the last few days and am curious what your take on that is.

    I realize judges and private employees/employers are two different classes of persons, but the right to participate in the governmental process is important to each citizen, and it concerns me organizations are contracting away that right in an overbroad manner, regardless of whether the public can actually affiliate that individual with either a)signing the petition or b) the employer. It would be a different story if a reporter took a news crew along to his or her signing of that petition and aired it, as that is directly connecting the news organization to the recall, and thus bias.

  9. Tom:

    Thank you for commenting. I must admit that I find your assertion that judges “voluntarily give up substantial rights” when they are elected to the bench to be perplexing. You must realize that this is not an issue of contractual bargain, just as it is not an issue of what rule might seem “reasonable” to a majority of the population. This is an issue of whether the state has the power to pass a law that infringes upon a fundamental constitutional right.

    Article XIII of the Wisconsin Constitution is clear. SCR 60.05(1)(a) should not be interpreted to require judges who signed recall petitions to recuse themselves because doing so would make SCR 60.05(1)(a) a law that would “hamper, restrict or impair the right of recall” in violation of Article XIII, by discouraging judges from signing petitions even if they were so inclined.

    As far as the First Amendment rights of state court judges under the federal Constitution, the Seventh Circuit has reminded us that state court judges do not relinquish their free speech rights upon assuming the bench. Here is a lengthy excerpt from the Seifert opinion, which I link to in my post:

    “A little background on the law surrounding the First Amendment rights of elected judges and judicial candidates is helpful to understanding what follows. In 2002, the Supreme Court decided Republican Party of Minn. v. White (White I), 536 U.S. 765 (2002). White I struck down a Minnesota canon of judicial conduct that prohibited judges and judicial candidates from announcing their views on disputed legal and political issues. Id . at 788. The Court, applying a strict scrutiny approach, recognized a compelling state interest in preventing bias for or against particular litigants, but held that the state did not have a compelling interest in preventing a judge from having a preconception for or against particular views. Id. at 776-77. . . . .

    To survive strict scrutiny, SCR 60.06(2)(b)1 must be narrowly tailored to serve a compelling state interest. White I, 536 U.S. at 774-75. To show that a restriction on speech is narrowly tailored, the state must show that it “does not ‘unnecessarily circumscrib[e] protected expression.’ “ Id. at 775 (citing Brown v. Hartledge, 456 U.S. 45, 54 (1982)).

    The Commission argues that the ban is necessary to preserve both “impartiality,” defined as the “absence of bias or prejudice in favor of, or against, particular parties, or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge,” SCR 60.01(7m), and the appearance of impartiality.2

    In White I, the Supreme Court cautioned against vague invocations of “impartiality.” 536 U.S. at 775. Insofar as impartiality refers to “the lack of bias for or against either party to the proceeding,” it is a compelling state interest. Id. (emphasis in original). This is consistent with the constitutional guarantee of due process, which requires recusal in cases where there is a strong probability of “actual bias.” See, e.g., Caperton, 129 S.Ct. at 2265 (holding that due process required a justice of the West Virginia Supreme Court of Appeals to recuse himself from a case involving a company whose president spent approximately $3 million to elect the justice while the company’s appeal was pending). On the other hand, the White I Court squarely rejected the argument that a state has a compelling interest in guaranteeing that judges do not have a “preconception in favor of or against a particular legal view.” 536 U.S. at 777 (emphasis in original). We not only allow, but expect, judges to have preconceived views on legal issues. See Laird v. Tatum, 409 U.S. 824, 835 (1972) (mem. of Rehnquist, J.) (“Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”). Finally, the White I Court left open the possibility that “openmindedness”-the willingness to consider opposing views and remain open to persuasion-is a compelling state interest. 536 U.S. at 778. Because the Court found that the canon at issue did not serve the interest of open-mindedness, it did not decide whether such an interest was in fact compelling. Id.

    The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position. But that is the purported compelling state interest that White I squarely rejected. 536 U.S. at 777-78. The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy.”

    Tom, You do not attempt to argue that signing a recall petition makes Judge Flanagan biased in relation to the Voter ID law, because there is at best only a vaguely attenuated connection between these two things. However, you do argue that signing a recall petition makes any state judge unable to rule impartially in any case where Governor Walker is named as a defendant in his official capacity.

    First of all, I find this assertion absurd on its face. You know as well as I do that when an official is named in a suit in his/her “official capacity” it is the same thing as saying that their personal actions are not in disupute in the lawsuit. If their personal actions are not part of the dispute, why would any animus towards that person play any role at all in the way in which the judge rules? The state cannot pass rules that assume that judges act irrationally, and expect to survive strict scrutiny.

    Second of all, because any plaintiff challenging a state law has broad leeway to name government officials as defendants in their official capacity, you would seem to want to give plaintiffs the power to force the recusal of certain judges simply by strategic pleading. We have already politicized the venue and appeal process in this state far too much.

    Finally, if Justice Gableman’s recent ruling against the Michael Best law firm “proves” that he is not biased as a result of receiving free legal services from the firm, as Rick Esenberg has asserted, then it would seem to me that a judge’s personal belief that Governor Walker should be recalled can be similarly set aside by the judge in the course of ruling on the merits.

  10. Paul M. Secunda Says:

    Hi Julie. Ed thought I might be the best one to address your questions.

    1. “While Gannett is a private employer, can they require their employees to contract away a constitutional right as a term of employment, especially one such as voting and the right to self-governance.”

    Yes, they can. The constitution does not apply to private employers such as Gannett because there is no state action and most Constitutional Amendments only apply to state action.

    2. “The employees willingly signed the code of ethics as a term of employment, but does this raise other constitutional issues, or is this requirement okay?”

    This requirement is OK. Does not raise constitutional issues. See above.

    3. “The employees did nothing to disclose publicly their signing of the recall petition nor their employment affiliation in order to raise their ‘transgression’ to the level of imputing any negative appearance on the news organization.”

    In short, in an at-will employment world, it really doesn’t matter. Employees can be terminated for good, bad, or no reason at all. Some states like Wisconsin recognize a so-called public policy tort, also called wrongful discharge in violation of public policy. However, most state courts, including Wisconsin’s, do not permit employees to bring such claims based on the policies underlying the constitution, such as freedom of expression or the right to vote.

    4. “I realize judges and private employees/employers are two different classes of persons, but the right to participate in the governmental process is important to each citizen, and it concerns me organizations are contracting away that right in an overbroad manner, regardless of whether the public can actually affiliate that individual with either a)signing the petition or b) the employer.”

    There might be a different if a public employee were involved. Then, under the doctrine of unconstitutional conditions, you could argue that one does not give up their constitutional rights in order to be publicly employed. But even in such situations, a balancing test must be undertaken, weighing the constitutional rights of public employees against the efficiency interests of the government employer. If the public employees conduct substantially disrupts the employer’s business, then the right is not likely to be vindicated.

    Hope this answer helps.

    Regards,

    Paul

  11. Paul, as mentioned before considering for judges who can sign a recall with no problem, if one signs the recall as an employee and does not publicize or promote the signing then no harm was committed to the employer. What powers would an employer have over the rules produced for a sitting judge? An employee’s civil liberties are put in questions here IMO and constitutional issues abound. Join the WTJM4 conversation here. Would love hearing professor’s opinion.

    http://www.todaystmj4.com/news/local/145992565.html?page=1&viewAll=1#comments

  12. Paul M. Secunda Says:

    Hi Gary.

    I have already spoke out forcefully on my Twitter feed (psecundawrkprof)against the actions being contemplated against employees at WTMJ for signing the recall petition against Governor Walker.

    Although WTMJ employees do not have constitutional rights against the state since they work for a private employer, there may be a public policy tort argument here. You may be familiar that employees have been successful in suits for wrongful discharge when their employers fired them for wanting to serve of jury duty (Nees v. Hocks). Under this line of cases, I see signing a recall petition as a type of civic duty that an employee performs and perhaps, as you suggest, an act that qualifies as signing a petition protected by the First Amendment or as exercising a right to vote protected by the 14th Amendment.

    As such, if WTMJ takes disciplinary action against its employees for the sole reason that they signed the recall petition, I think the impacted employees would have a colorable public policy tort claim against WTMJ.

    Best,

    Paul

  13. While “Parties have a reasonable expectation that their judge will not be biased towards their particular case,” judges often vote ideologically and their actions can be predicted with Republican judges overturning Democratic decisions, and vice versa. Cases are brought to the courts more often when the attorney’s are ideologically close, but ideologically distant from the bench.

  14. Robert Zeinemann Says:

    Viewed in light of the election result (Scott Walker won), it has become even more evident that no one should have assumed that Judge David Flanagan’s act of signing the recall petition showed bias or required his recusal. See my March 28th post above. We should not assume to know what people are thinking when they sign a recall petition. It turned out that all those who signed the recall petition did Governor Walker a big favor (he is now stronger than ever and a national figure), and the recall reduced President Obama’s chances of winning Wisconsin. This was not a wholly unpredictable outcome — I suggested this was possible back in March. People who signed the recall petition may have done so to help or hinder Governor Walker. It is too superficial to say signing a recall petition reveals political bias. Thus, it should not require recusal.

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